COURT FILE NO.: 02-FP-281669-0001

DATE: June 26, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE

APPLICANT

G.A.

RESPONDENT

K.B.

Applicant father in person, without a lawyer

Joan M. Irwin, for the respondent mother

Julia Tremain, for the Children’s Lawyer on behalf of the children

HEARD: June 9-13, 16, and 18-20, 2014

Perkins J.

Issues in the case

[1] The central issue in this case is whether the mother, who has sole custody of the parties’ two children, can move away with the children to reside near Washington DC. This is a motion brought by the mother to change the final consent order of March 5, 2010, which precludes her from moving the children out of the Toronto area. The father opposes the move. He says the move may be in the mother’s best interests or those of her new partner, but not the children’s.

[2] The father has also brought his own motion to adjust another final order made on March 18, 2010 governing the child support arrangements. He seeks changes to the monthly table amount and the section 7 expenses dating back to 2011 and going forward. The mother seeks her own changes to the child support dating back to 2011 and going forward.

Result

[3] The mother’s motion succeeds. She retains sole custody and is permitted to move with the children.

[4] The father’s request for an adjustment of child support and the mother’s similar request are to be finally determined on a reference in which I will take the accounts of the income and tax gross up amounts and the section 7 expenses as set out below. In the meantime, a temporary support order is to issue in accordance with these reasons and a support deduction order is to go with it.

[5] Costs are to be addressed in writing and are to be dealt with at the reference before me.

[6] This case is to be reported using only initials for the parties, because of the sensitive issues involving the children.

Family history

[7] The mother and father married in 1994. They have a daughter of almost 15 and a son age 13. They separated in 2002, when the children were only 3 and 1½. They were divorced in 2005.

[8] Before the parties separated, the mother began a relationship with the man who is now her fiancé. He has been working at jobs based in the US, first in Boston, then in Washington DC in a job that allowed him to work remotely from Toronto, and then in another job in the Washington DC area that requires his presence on site there and in other US locations. For 11 years, he has spent as much time as his job would allow with the mother and the children in Toronto. He has been a parental figure in the children’s lives for more than 10 years. In 2007, he bought a house in the Toronto area for the mother and children to live in. He lives in it too when he can, now principally on one or two weekends a month. He and the mother plan to marry soon but US immigration rules have impelled them not to marry yet.

[9] The father lives in the former matrimonial home. His elderly father, who suffers from Alzheimer’s disease, moved into that home in April or May, 2011. In 2011-14, the father’s father lived there for about half the year, and up until now spent the winters in Florida, but it looks as though the extended Florida winter vacations will no longer be possible. The father has recently entered into a relationship with a woman who has three children, but they do not live together.

[10] The children are both healthy, active teenagers. They have good friends at their school, in their activities, and at their summer camp. The daughter is bright but has educational challenges from what a psychoeducational assessor has called memory and processing issues. She needs some extra help in school, including tutoring in some subjects. The son is exceptionally small for his age and has been diagnosed as having “idiopathic short stature”, which simply means the medical professionals can’t figure out why he is so short. They have ruled out dwarfism and growth hormone deficiency. He is currently receiving growth hormone treatments with the advice and under the supervision of a leading hospital. But despite this, the son has excelled at gymnastics and has competed at the provincial level. He is also a good student.

[11] The parties and children are Jewish. This is an important part of their identity. Both parties’ background growing up was Reform, but since the separation the father has become active in an Orthodox congregation. The mother and children have not been observant or affiliated with a synagogue for at least 10 years, although the son recently had his bar mitzvah at the father’s synagogue. The mother’s fiancé is also Jewish.

[12] The father is an employee on salary, with a potential for a bonus each quarter. He has a rentable basement apartment in his house. The mother is self employed and is building up a new business. The income issues will be canvassed below.

Litigation history

[13] This case has been active, on and off, for the last 12 years. It has been aptly identified as high conflict. The children have never known a time when their parents were really at peace with each other.

[14] The father began the initial application for divorce and other relief in 2002. The first substantive order was made on consent on January 30, 2003. It provided for temporary joint custody, in the form of joint decision making, primary residence with the mother, and residence with the father alternate weekends from Friday afternoon to Monday morning, every Tuesday overnight, and alternating Thursday evenings with a possible expansion over time to an overnight. The order also included a prohibition against moving the children out of the “GTA”, the greater Toronto area, which includes at least Toronto, Durham, York, Peel, and Halton. The order specifically mentioned joint decision making “with respect to the children’s health, education, welfare, including an observance of the children’s Jewish traditions”, and required that “neither [parent] will interfere in the other’s parenting of the children during their time with the children”. The “important” Jewish holidays were equally divided between the parents, as were the school vacations and other holidays. Child support, including section 7 expenses, was also provided for on a temporary basis.

[15] In December, 2003, the court made a child and spousal support order in favour of the mother, but the order was later stayed, because the father and his lawyer did not attend for the motion, having understood the motion was not proceeding.

[16] On May 21, 2005, the court made an order divorcing the parties and incorporating terms of a consent dated January 17, 2005. The 2005 order continued the terms of the 2003 order, with variations. The child support was adjusted and provision was made for mediation/arbitration of section 7 expenses. Though the 2003 order already contained a term prohibiting a move of the children, the divorce order repeated that, “Neither party shall remove the children permanently from the Greater Toronto Area or the Province of Ontario … without the other party’s consent.” The divorce order also provided for mediation/arbitration of disputes “on a parenting issue”.

[17] The parties went to mediation on several issues in 2005. Unfortunately the mediator declined to deal with financial issues, saying she could deal only with parenting issues. The mother took the position she wanted one comprehensive mediation on all issues. The court appointed a new mediator/arbitrator by order dated January 6, 2006. The parties proceeded to mediation and arbitration of the outstanding issues in May and June, 2006. The mother disagreed about the list of issues the arbitrator intended to deal with. The arbitrator indicated he would declare that it was impossible to continue the arbitration unless he secured agreement by the parties on what issues were to be arbitrated. That agreement was never achieved. The arbitration was terminated by the arbitrator.

[18] The parties were back in court on August 9, 2007 for a motion by the mother. She sought sole custody, payment of the cost of a nanny, approval to treat the son with growth hormone, and other matters. In the order made that day, the court continued joint custody and appointed a parenting coordinator. The mother’s request to implement growth hormone treatments for the son was denied, “without prejudice to her right to bring forward further medical evidence to support her request in the future.” The order also stated, “There shall be no activities on the weekend other than religious observance and associated classes.” The order expanded the father’s Thursday access under the 2003 order to every week, overnight to Friday morning.

[19] On October 6, 2008, the court made an order declaring that the 2003 and 2007 orders were “interim”, and in the endorsement that led to the order, said that the 2005 divorce order was also not final in its terms about custody. It asked the Children’s Lawyer to intervene in the case. The Children’s Lawyer accepted the referral and provided a lawyer for the children and a “clinical investigator” to ascertain and present their wishes and preferences.

[20] On September 15, 2009, on consent, the court made an order adjusting the parties’ parenting time, while still leaving joint custody in place. Now the children were to reside primarily with the mother, they were to spend the first weekend of each month with her, the father was to continue having them overnight every Thursday night, and the father was to have the children the other three weekends of each month.

[21] The case was bound for trial in March, 2010. On March 5, 2010, the children’s issues settled, and the court made the final consent order governing custody and access that is before me for variation. The father conceded sole custody and primary residence of the children to the mother. The order also included a term once again prohibiting the children’s primary residence from being moved from the greater Toronto area. Notice of an intention to relocate outside that area was required to be given 90 days in advance. Major decisions, including decisions about change of schools, growth hormone treatments, ADHD medication, psychological therapy, and a change in religious education, required notice to the father by the mother at least 30 days before implementing the decision. The father could challenge the decision, within the 30 day period, by a motion to the court. If the father did not challenge before day 31, the mother could implement the decision. The order also provided, “The parties shall respect the access schedule as agreed, and shall not schedule activities for the children during the other parent’s access time without the written consent of the other parent.” The regular schedule had the children with the mother the first weekend of each month, with the father the last weekend of the month, and on the other two weekends of each month, the children were with the father from Friday afternoon to Saturday afternoon and with the mother from Saturday afternoon on. The father also had the children for an evening each week. The order contained detailed provisions for the sharing of Jewish holidays, school breaks, holiday weekends, and summer vacations.

[22] The parties’ financial issues proceeded to a trial. On March 18, 2010, the court decided the issues, gave oral reasons, and made the final order for child support (spousal support was no longer an issue) that is before me for variation. The court found the father’s 2010 income to be $83,000, made up of salary of $77,000 and (imputed) rental income of $6,000 for the basement apartment in his house. The table amount of child support payable to the mother was $1,196 a month, from January 1, 2010. In determining the sharing of section 7 expenses claimed by the mother, the court had to decide an appropriate result, in light of her income. The court said,

Taking all of this into account, I conclude that the mother can easily earn at least as much as the father. This is also in the range of what she earned before, before embarking on her own business. As a result I find that any section 7 expenses should be shared equally with the father. This seems to me to be a reasonable approach, particularly given the longstanding high conflict between these parents. Anything that I can do to minimize contact and conflict between them can only be in the children’s interests.

[23] The court considered what amount to allow for child care, which was then being provided by a nanny, and chose the after tax cost of $1,000 a month, after accounting for the benefit to the mother of housekeeping and other services provided by the nanny. For the children’s tutoring and recreational activities, the mother asked for the father to contribute to a total cost of $12,000 a year, which the court found “simply not affordable”. Further, the court found that these expenses were “not extraordinary in terms of her income and therefore the father need not contribute to them.” The order provided that the father was “not currently required to contribute to any extracurricular activities”, but this could be reopened when the children no longer required child care. The father was required to obtain the highest available level of medical, drug, and dental insurance for the children offered by his employer, with the parents each to be responsible for half of uninsured medical, drug, and dental care.

[24] The mother began a motion on June 9, 2011 to change the March 5, 2010 order to allow for both children to take part in recreational activities (dance for the daughter; gymnastics for the son) during the father’s weekend access times. On July 21, 2011, the father responded with a request to change the child support terms of the March 18, 2010 order, retroactive to May 1, 2011.

[25] The Children’s Lawyer came back into the case at that point, assigning the same lawyer and clinical investigator as before.

[26] A continuing complaint of the father has been that the mother scheduled activities for the children during his access time, and especially interfering with his Shabbat observance. This issue triggered a contempt motion in November, 2010, which the parties resolved by consent on November 10, 2010. They made small adjustments to the pick up locations and times and drop off time for the father’s midweek access. Another dispute triggered another contempt motion in October, 2011. On October 18, the court resolved the issue on consent. The Children’s Lawyer’s agent was of great assistance on this and other occasions. The resulting consent was turned into an order dated October 18, 2011. It changed the regular access schedule under the 2010 order to alternating weekends. It allowed for the son to take part in gymnastics until 8 p.m. on Fridays and permitted the daughter to go to dance class on Saturday afternoons, even during the father’s access times. The mother was required to transport the children. The new order also eliminated the father’s midweek evening access, which the father gave up willingly because the amount of driving during the evening meant that there was little time available for a useful visit.

[27] On November 14, 2012, the mother amended her motion to change the 2010 custody/access order to ask, for the first time, to be allowed to move with the children to the Washington DC area.

[28] The father brought another contempt motion against the mother, heard on December 4, 2012, in which he accused the mother of failing to ensure that the children attended for access. The court found there was some evidence that the children themselves were unwilling to go for access and dismissed the father’s motion.

[29] On January 13, 2013, the mother again amended her motion to change the 2010 custody/access order. She set out extensive grounds for her request to move away with the children. She amended her motion on June 13, 2013 and yet again on March 6, 2014, this time with the assistance of a lawyer on record for her. The claims were those before me.

[30] The father responded to the motion to change custody and access on July 7, 2013. He disputed that there was any material change in circumstances and asked for custody of the children only in the event that the mother was permitted to move to Washington.

[31] There were other appearances in this matter that do not bear discussion here. The degree to which judges were required from 2011-13 to fine tune and tweak details of pick up and drop off times and locations is remarkable. Fortunately the child support issues have not burst into conflict until the trial before me. The father has faithfully complied with his child support (table and section 7) obligations and there are no arrears under the existing order for either table or section 7 amounts to date.

[32] The last appearance before this trial was a trial management conference that I convened on June 6, 2014. I was concerned that the father’s evidence would be unduly lengthy and would attempt to canvass events going all the way back to before the parties separated. I set the parameters for the evidence at the trial, educating the father about what was and what was not before me. I then ascertained the time needed for each proposed witness and imposed time limits for the examination and crossexamination of each. At the trial, I permitted the father to add two witnesses whose testimony was very brief. The trial proceeded with the issues before me being fully explored and the time limits being met by the parties, without difficulty.

Applicable law

[33] The orders before me were made under the Divorce Act. The party seeking a change to custody, access, or child support must meet the tests set out in section 17(5), (6.1), and (9) of the Act. For custody or access changes, under section 17(5), there must be “a change in the condition, means, needs or other circumstances of the child of the marriage since the making of the … order … and in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change”, and under section 17(9), the court must “give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child”. For changes to support, under section 17(6.1), the changed order must be in accordance with the Child Support Guidelines.

[34] Of course, no move away case decision would be complete without a consideration of the principles laid out in Gordon v Goertz, 1996 191 (SCC), [1996] 2 SCR 27. The law was summarized in the majority decision as follows (at paras 49-50):

49 The law can be summarized as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

Evidence at trial generally

[35] The evidence and findings in support of the existing custody and access order are, first and foremost, the parties’ consent. The actual consent signed by the parties was not presented to me. All I have is the terms of the March 5, 2010 order, which the parties agreed accurately set out the terms of the consent. The evidence concerning the circumstances behind that consent was given at the trial before me. With one exception – the circumstances and expectations concerning the mother’s fiancé and his employment requirements – that evidence was not controversial. This will be discussed below.

[36] The changes to the access regime made in 2011 were often ignored by the parties in their evidence and submissions, as though they were minor changes to the greater scheme of the 2010 order. Certainly the 2011 order did not alter custody. It did resolve the access issues about the children’s activities on the weekend and it did move the arrangement to a more standard alternating weekend routine. However, the big issue before me was custody and primary residence, as a result of the mother’s desire to move away. That framework, including the non removal clause, comes from 2010.

[37] The parties both testified at length before me. The father also had his sister testify. She was a frank and helpful witness. The mother’s fiancé was an insightful and impressive witness. The father’s other supporting witnesses established that the children were happily involved in their schools and recreational activities but did not shed much light on the major issue of whether a move would be in their best interests. To the extent they offered any information about this, they tended to back up the mother’s contention that the children are highly sociable and adaptable.

[38] The Children’s Lawyer social worker (clinical investigator) was a careful and thoughtful witness who had an excellent recollection of her meetings with the children and the parents and a very clear knowledge of the children’s wishes and preferences. I readily accept her testimony. The children were consistent in their desire to live with the mother, wherever that might be. The son was more positive toward the proposed move, which he regarded as an opportunity and an adventure. The daughter was ambivalent at first but over time had come around to being more positive than negative about a move. Both children were very clear that they loved both parents, enjoyed their time with the father, but could not under any circumstances see themselves living with the father. They also enjoyed the time that the mother and her fiancé were able to spend together in the home with them as a family unit and looked forward to more of that. They were willing to leave their past associations behind, knowing they would form new ones and confident they would be able to keep in touch with close friends.

[39] Though the father suggested the mother and her fiancé had been working on the children to alter their preferences, there was absolutely no evidence of any such attempt. It is true the mother and her fiancé took the children to see neighbourhoods and schools that she was considering for the children near Washington. This initiative was supported by the Children’s Lawyer social worker as reasonable, to let the children see for themselves what life there might look like. I agree that the trip was a reasonable thing to do, given the ages and maturity of these two children – indeed, it would have been unfair to them not to give them this kind of information. I did not hear anything that led me to conclude the trip was used to pressure the children or that they had been unduly influenced by it, though they were reassured by it.

[40] After obtaining the assent of the parties, the Children’s Lawyer, and the children, I met with the children myself in order to do a final check on their wishes and preferences. I am very glad I did. I was able to see for myself what so many of the witnesses talked about – these children are delightful, as well as bright, appropriately mature for their ages, closely bonded to both parents and to each other, appreciative of the strengths and aware of the weaknesses of their parents, realistic in their appreciation of the issues affecting them, and willing to talk about their wishes and preferences.

[41] The meeting took place with only their lawyer and court staff present. It was recorded, but I told the children the recording would not be released and their views would be kept confidential, unless they authorized me to communicate their views to their parents, which they did. I made it very clear that they were not to be the decision makers, that their wishes and preferences would be taken into account along with a lot of other information from the parents and others about what arrangements would be in their best interests, that I had to make the decision where they would live because their parents could not agree, and that my decision would be based on some legal considerations and on my appreciation of what was in their best interests.

[42] Both children were very clear that they wanted to live with their mother. They stated that they were now positively inclined (the son a little more than the daughter) toward moving to the Washington DC area to live with the mother and her fiancé, even if that meant leaving friends, schools, and activities behind and having less access time, at least during the school year, with their father. The children were also aware of the risk that they might, because of US immigration rules, be unable to leave the Unites States for about six months after arriving in their new home – see below. They expressed the hope that the father would come to visit them during this period about once a month.

Father’s theory of marginalization and manipulation by mother

[43] The theory of the father’s case, about which he testified at great length, was that from the separation, the mother had tried to marginalize him in his role as a parent and to interfere with his access time with the children. He tried to show that the mother never let him get involved in decisions about school issues, growth hormone for the son, or choice of activity times, until the last moment or until the decision was a fait accompli. In his view, the mother always set him up to be “the bad guy” if he opposed what she or the children proposed. It is true that the mother would sometimes go farther down the road toward a position or a decision than was ideal in a joint custody situation, which existed from 2002-2010. However, this couple’s situation was far from ideal. They could not and still can not have a civil conversation. From as early as 2003, they were ordered not to communicate unnecessarily by telephone with each other, and from 2009 on, the parties were communicating almost exclusively by email. Email was written into the 2010 order (para. 33) as the only method, except in emergencies. This became a bit of a fetish for the father, who kept asking the mother to produce email notifications that he knew didn’t exist, and took the position at the trial that because he was informed orally in person at court about a new meeting at school, he had not been properly notified.

[44] The mother said, on the other hand, that she never actually took the children to activities, although she may have enrolled them, before “opening a discussion” about the activity with the father in an email and getting his assent or a court order, and she did not discuss the issue with the children until there was a resolution. She said she was responding to what the children told her they wanted as they grew and became more skilled at their favourite activities (dance, for the daughter; gymnastics, for the son) and more interested in competing at the next level. That meant, for both, participating in training or competition during the father’s access times, and most importantly for the father, taking the children away from his Shabbat observance.

[45] While I do not accept that the mother never communicated the father’s opposition to or doubts about proposed changes to his access times, the evidence satisfies me that the mother was not engaged in a campaign to exclude or marginalize the father or manipulate things to show him to be rigid, inflexible, or “the bad guy”. He was simply not as attuned as she to the wishes of the children in respect of their activities. He still isn’t. The children have both expressed the wish that he would take an interest in what they are doing and listen to their opinions. The father would demand that unrealistic alternatives – a nonexistent competitive Jewish dance team that kept Shabbat, for example – be explored, when not only was that not feasible, but also it had no link to the children’s expressed desires. In the case of the son, the father could not respect his desire to try to increase his chances of reaching an average adult height. His response to the growth hormone issue – sending the hospital an outdated order to make them think the mother did not have the authority to start hormone treatments – seeking out a reporter and being interviewed, identified, and photographed in a newspaper article that called his son’s course of medical treatment “shooting up” with drugs – was simply outrageous. At the trial, he stubbornly defended these actions as a matter of free speech and principle on an issue of the use of public resources. And yet the son, after refusing access for weeks, eventually forgave him and resumed access, in part because the mother urged him to do so. Her fiancé also lent a hand in that effort. So did the Children’s Lawyer.

[46] This was not a campaign by the mother. The father has at times been his own worst enemy. By contrast, the father did embark on a campaign to vilify the mother and said some perfectly horrible things about her to his congregation and to the Children’s Lawyer social worker. The mother was not blameless either, however. She has disparaged the father’s religious commitment and practices as being hypocritical and even fraudulent, and I have no doubt the children have picked up on this. As I said at the trial, inconsistency of religious practice is not necessarily hypocrisy. It can be evidence of flexibility and a desire to accommodate the children, and that has been the case here. The father has bent more than he feels comfortable with at times, so as not to be too demanding of the children. I accept that his religious commitment is sincere. I see that he is struggling to deal with his needs in that respect while trying to meet the children’s own desires about religious observance, which are not as strong as his and (at least as far as the son is concerned) are still evolving.

Material change in circumstances affecting custody

[47] The mother submitted the evidence established at least four material changes since the 2010 order that affected the custody situation and required a fresh look. First, there is a need or a desire to move away from Toronto that was not present before. Second, the mother’s relationship with the man who is now her fiancé has changed, to the point that they now wish to marry as soon as they can. Third, the children are now four years older and have different needs, interests, and wishes. Fourth, the conflict between the parties has not only continued, but also has worsened and has been directly impacting the children in ways that are new.

[48] The father rejected all of these suggestions, though he concentrated on the first one. He said the idea of a move was always there, because the mother’s fiancé has always worked for an American company based in an American location.

[49] The fact that the father may have suspected or feared a move does not make the current proposal one that was foreseen or reasonably within the contemplation of the parties in 2010. The evidence I have from both the mother and her fiancé was that the prospect of a move did not become real until after the 2010 order. The fiancé was working for a US company in 2006, but his supervisor, knowing that he was in a long term, long distance commuting relationship with the mother, suggested that he should move to Toronto and continue to work from there. From 2006-10, that is what he did. He bought a house for himself, the mother, and the children in 2007, had it renovated, and moved in in 2008. He continued with that firm into 2010, though he knew in late 2009 that the job would be ending. However, he had real hopes of finding work that would allow him to keep Toronto as his home base. He did a job hunt with a headhunter for a Canadian position, but that did not pan out. He approached a former employer and secured the position he now holds in Washington, but the initial premise was that he would be able to keep his Toronto home and have his travel largely paid by the new employer. Unfortunately the higher executive levels declined to allow this plan. This all became clear after the 2010 order but he and the mother carried on regardless for a time before deciding, in 2011, that they wanted to marry, and then in 2012 that they wanted to move. That was when the mother amended her motion to seek approval for the move. The changes in the fiancé’s availability at home have increased the stress on the mother of juggling her roles as parent, householder, and independent business owner, to the point that the children feel the effects too. I found the testimony of the mother and her fiancé credible. This version of events was also uncontradicted

[50] The relationship of the mother and her fiancé has changed, and I think that a change in status from unmarried cohabitants to married is of some significance. It declares an intention of permanence that was not previously announced. It also creates legal consequences that are not insignificant under Ontario law and that of all North American jurisdictions.

[51] There have been several events affecting the children and their needs, wishes, and preferences since the 2010 order. There were disputes between the parents about access scheduling and activities that led to three contempt motions by the father and three access tweak orders. Both children refused at times to go for access. The mother became embroiled in a struggle with the father over growth hormone treatments for the son, in which the father ignored the process set up in the 2010 order for dealing with such issues and instead resorted to self help (the misleading and outdated order sent to the hospital) and the court of public opinion (the newspaper article). Now the daughter frequently goes for access on Fridays but leaves the father’s home on Saturday to go to dance and does not return. As the mother put it, the children are now more or less in charge of whether and when they go, and usually the son goes for the weekend and the daughter goes for a day. The children have made it clear they will not be disturbed if they move and the father has only one weekend per month access. They have also indicated they are ready to try new schools and activities in a new place.

[52] To some extent the above discussion covers the mother’s point of continuing conflict. The nature and extent of the conflict are not really new. Neither was it unexpected that the conflict continued after the 2010 order. What is new is that the children are participating to a greater extent in it than before. The son took to locking himself in the bathroom on two occasions – equipped with supplies – so he could withstand his mother’s attempts to get him to go for his regular access. The daughter has asserted greater control over whether and when she goes and how long she stays.

[53] Also worthy of mention is the children’s growing bond with the mother’s fiancé, whom they like, respect, and even admire, and whose calming influence on the mother and their home generally they appreciate and look forward to. They want the benefits of a two parent family, and they know the only place they can have that regularly is near Washington.

[54] I find that the above circumstances amount to a material change affecting the children’s best interests. They were not foreseen or reasonably within the parties’ contemplation in 2010.

Best interests considerations

[55] Other than articulating a consideration of “the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child” (section 17(9)), the Divorce Act gives us no help in evaluating best interests. Section 24(2) of the Children’s Law Reform Act provides a useful list of considerations. So does Gordon v Goertz, above, at paras 49-50. Still another useful list of factors is found in NDL v MSL, 2010 NSSC 68, at paras 9-10. I have reviewed and considered them all.

[56] There is no question that the mother has always been and still is the primary parent for the children in dealing with their physical care, their medical and educational needs, and their social and recreational pursuits. The father has had a greater role in religious matters but religious practice has not assumed a large role in the children’s lives, other than the recent and successful completion of the son’s bar mitzvah. The father is regrettably out of touch with the children’s priorities for their activities and has not even attended them very often. The parents both clearly love the children and the children love them, but there is no doubt that the children look to their mother for guidance, comfort and emotional support and have reported that they are largely unable to do so with their father. The mother’s fiancé is a major, positive figure in the children’s lives and has formed a strong bond with them. The father’s new partner has not yet had such an impact. Strangely, the father more than once at the trial seemed to rate involvement with his children as roughly equivalent in priority to his job, care of his elderly and ailing father, his synagogue and its board, and even his sailing club. Even assuming no immigration issues, which is in fact unrealistic, there is no suggestion that the father is interested in relocating to follow the mother and children.

[57] The mother and her fiancé have been together for about 12 years and were living together primarily in their Toronto home for about four years. The stability factor will be present if the mother is permitted to relocate to Washington. It may well not be if she must remain in Toronto. Her testimony, which I believed, was that it was unclear whether her relationship would survive another long period of long distance commuting by her fiancé.

[58] The issue of maximum contact with the father is not so difficult in this case as it often is. His current regular access now is about four days a month for the son and two or at most three days for the daughter. If the mother and children relocate, with a little effort by the father, he would be able to have three days a month, either here or in the Washington area, and the mother has offered financial terms to assist in travel. The father could also benefit from increased school vacation times to make up for less during the school year. To the extent there is a slight diminution in the available regular access for the father, I am convinced that the other factors in their best interests outweigh the loss.

[59] The children’s views and preferences are set out above and clearly favour remaining with the mother and moving. There is no willingness on their part to entertain living primarily with the father.

[60] The mother has, along with her fiancé, clearly done a great deal of research into the quality of neighbourhoods and schools and the available resources for a Jewish family in the Washington area. She has made contact with guidance counsellors and educational resources there. The children would be well housed, in good communities and schools, connected to the Jewish community, and within reach of recreation programs. The biggest question mark is whether the growth hormone treatments currently provided virtually free in Ontario would be covered by insurance in the US. There is no way to answer this question now. However, I note that the means of the mother and her fiancé are considerable and in these circumstances, I think the issue is of little significance. By contrast, I heard very little from the father about his alternative plan.

[61] There would be a risk of disruption to the children’s education. The mother has in the past led the effort to get additional resources for the daughter, against the opposition of the father. Her efforts already to establish links with extra resources in the schools just outside Washington show that she would manage this issue appropriately. There is always a risk of disruption resulting from removal from family and friends, but the children have very little family here and not a very strong connection to it. They have asserted they will remain in touch with friends using social media, and there is no reason they could not do that with their cousin, for example.

[62] The father has raised doubts about whether the mother would in fact follow through on her proposal to purchase airline tickets for the children in advance and ensure that they return here to spend time with him. But the children have said repeatedly to their lawyer that they want to travel to Toronto and spend time with their father. Yes, they would also want to spend time with friends, and the father would have to contend with that, just as he would have to do if the children were to remain here. If only the father had expressed the same level of commitment about going to Washington to see the children as they have expressed about returning here to see and spend time with him.

[63] The mother is child focused in her plan and her desire to move. Her views are entitled to great respect, according to Gordon v Goertz. It is not, as the father submitted, all about her fiancé’s convenience. Her fiancé, by the way, is not being capricious either about his need to remain primarily in the Washington area. His testimony on this point was credible that he can not continue in the very specialized field in which he has worked for so many years without establishing his commitment to live in the USA.

[64] My evaluation of the evidence and my consideration of the best interests factors, including the maximum contact principle, results in a finding that the mother’s plan is in the children’s best interests.

[65] She will accordingly retain sole custody of the children and be permitted to move to live within 50 km. of the boundary of the District of Columbia.

[66] The access arrangement must be completely revamped. This is not only because of the distance, but also because, according to the evidence I heard, once the mother and her fiancé marry, which can only occur after the move, an application will be made on behalf of the mother and children to be granted immigrant status. While that application is pending (estimated to be as long as six months), the mother and children must not leave the USA.

[67] I have been provided with a draft order by the mother’s lawyer. It is generally satisfactory, but for convenience, I will simply refer to a few paragraphs that require changes. Para. 4 (choice of school) should be omitted, as that is part of sole custody. Para. 6(b) should be simplified to say that all access is to occur in the USA until the child or children can travel outside the USA without adversely affecting their immigration status, unless the mother agrees that the child or children may leave the USA for the access. Para. 6(e) should say that access is expected to take place as planned by the parents until the child affected reaches the age of 18, and the parents shall in planning access give every consideration to the wishes of the children. Paras. 8 and 9 (advance notice about decisions) should be omitted. Para. 17 should be amended to specify that communications are to be civil and respectful and are to be limited to dealing with issues affecting the children or child support.

Child support table amount

[68] Child support changes are not subject to the same requirements of a material change in circumstances as custody and access orders, but there must still be a change or circumstances in order to justify a change.

[69] In 2010, the trial judge found the father’s income to be $77,000 from salary and $6,000 from imputed rental income, for a total of $83,000. In 2011, the father’s father returned from his winter in Florida, sold his condo and moved into the father’s house. He did not occupy the basement apartment in the house and he does not pay rent. He did pay off the balance of the father’s mortgage, some $165,000, in the year he moved in. The father testified that the basement apartment is now used as a storage place for the “stuff” belonging to the father’s father. The father provided no evidence as to why that was reasonable or necessary or what alternatives might reasonably have been considered or adopted. In the circumstances, I see no reason to disturb the imputation of $6,000 a year of net rental income to the father for the basement apartment.

[70] I heard evidence from the father and his sister that the two of them are now (since 2011 and earlier) benefiting from an annual gift from their father of the prescribed annual withdrawal, after withholding tax, from their father’s RRIF. This amount was not referred to in the reasons of the trial judge in 2010. I can only conclude that it was not disclosed to her in the evidence. The father did not establish that it had been. Certainly such a large sum would not have been ignored. This amount has been about $22,000 a year to each of the father and his sister. Of that amount, he contributed $10,000 last year to the children’s RESPs, which is the maximum amount allowed for the current year plus a catch up on past years. The father has as well been benefiting from an annual gift in the amount of his real estate taxes from his father, which the father estimated at about $5,000 a year, though no documentary proof was provided.

[71] Under section 19(1) of the Child Support Guidelines, the court can impute such amount of income to a parent as it considers appropriate in the circumstances. The list of circumstances in section 19(1) is by way of example only and is not a closed list: Bak v Dobell, 2007 ONCA 304, 2007 OJ no 1489 (CA). This strikes me as just the kind of circumstance where, in fairness, income should be imputed on account of the gifts the father is receiving. His contribution of $10,000 to the RESPs is laudable, is savings for the children, does not result in a tax deduction, and is not readily obtainable by him for purposes other than an education program for the children. In all the circumstances, I think it is fair to impute untaxed income of $17,000 to the father each year (to be grossed up for the unpaid tax), made up of the amount received from the RRIF less the amount contributed to the RESPs, plus the amount of realty taxes paid, in addition to the $6,000 net rental income imputed by the trial judge in 2010. In any year since 2010, the father is to receive credit for only the actual amount he deposited to the RESPs. I understand the mother is now in possession of annual RESP statements for the children going back several years. The calculation should be simple enough.

[72] This will require a recalculation of the table amount of child support for 2011-13, based on the father’s salary (including bonuses and other line 150 income) for each year plus the above imputed income amounts.

Section 7 expenses

[73] This will also require a reconsideration of the section 7 expenses. The recalculation starts with the mother’s income. The mother generously decided not to contest the continuing applicability of the trial judge’s finding in 2010 that she could easily earn as much income as the father. Of course, the trial judge did not know about all the RRIF money the father was receiving. The mother suggested an imputed income of $80,000 for herself. I accept this figure, except that in any year in which the father’s total income as calculated above is less than $80,000, the mother is to have her income imputed to be equal to the father’s.

[74] The trial judge in 2010 found that the father need not contribute to section 7 expenses other than child care and that he could not afford to do so. The picture has now changed considerably. The section 7 expenses for each year, starting in 2011, need to be looked at in light of the new income information I have. One part of that will be the expenses for the health and dental premiums paid out of pocket by the father. I now know that he receives an employment benefit that he can allocate to reduce or eliminate his out of pocket costs. That too needs to be looked at. Then there are the expenses for uninsured health and dental amounts, but those may no longer be in issue. Finally, there are the recreational expenses for the children, which the 2010 trial found unaffordable, but which may no longer be so unaffordable, and not extraordinary for the mother, though perhaps they now are.

[75] The arithmetic for all of this, and the computer calculations for tax gross up for the table amounts for each year, need to be done by the mother’s lawyer. She is to serve a year by year calculation on the father and try to reduce any remaining issues by discussions with him. I will conduct a reference of any remaining issues on a date to be booked with the trial coordinator for an available date when I am sitting.

[76] In the meantime, the question arises as to what the current support order should be on a temporary basis for the months from May 1, 2014 until the child support can be finally adjudicated. The father’s line 150 income for 2013 was $105,909. To that should be added the $6,000 imputed rental income and the $17,000 imputed untaxed income from the RRIF gifts to him. Taking a conservative estimate, I will fix the temporary order from May 1 at the table amount for two children based on total imputed income of $135,000, which is $1838 a month. To that will be added the $500 monthly section 7 expense amount from the 2010 order, pending clarification of the final picture. A support deduction order will issue accordingly.

Costs

[77] Costs are to be addressed initially in writing. Submissions of not more than five pages for the trial should be exchanged now. The costs of the reference and perhaps further submissions will be arranged when the reference is heard.

Preparation of custody and access order

[78] The mother and the Children’s Lawyer are to prepare a draft order on which they agree and submit it to the father for approval as to form and content. He is to have seven days for review. Any issues may be submitted to me in writing, via the trial coordinator, for determination. The temporary support order is to be done separately in the same fashion. It is to contain a term directing a reference to me to take the final accounts on the child support issues. The support deduction order will issue when the form of the temporary support order is settled.

Perkins J.

Released: June 26, 2014